Help with a CCJ Set Aside please?

Le_Kirk

I was only answering the question the OP asked; if this is a set-aside hearing it is always recommended to have a defence (to the underlying claim) in your back pocket, in which case no fee will be payable, as you say.  If the set-aside is being requested because of CPR 13.2 (claim not properly served) then no defence is required at that stage but if it is CPR 13.3 (any other case) where the applicant has to show a real prospect of defending the underlying case then best to have a defence ready for if the judge asks.

Mars28

 Thanks for your help.

This is just for the set aside hearing which I am semi-confident about because there are reasons under both 13.2 and 13.3 to set aside. I also hope for it be be declared dead at the same time as the default judgement was 5 months ago, but I’ll plan for the worst and prepare a defence.

I’ve put an expected defence  for 13.3 in my WS, in case the reasons I’ve given aren’t accepted to satisfy 13.2. But I now have evidence that the NTK wasn’t compliant, and that I wasn’t the driver, which wasn’t included in the N244 pack as I had not received the documents from my SAR by that point. 

So I guess the question is, I wasn’t sure if I should submit it this supplementary evidence to add support to the draft defence points raised in my WS, or just take it along to the hearing.

Thanks again

Le_Kirk

If you are going to use anything at the hearing, it has to be submitted to the court and the clamant else the claimant will accuse you of an ambush.  Nothing to stop a supplementary witness statement if it based upon new evidence coming to light provided you send it to claimant as well.

Coupon-mad

I'd send a skelly appending the relevant code of practice about checking details before litigation, plus the '4 months dead' authorities (transcripts x 4) as seen in Brokenchief's thread, if you haven't already.

But not the draft defence yet, as you are hoping for the claim to be struck out as dead.

Your argument is that the authorities show the courts have no jurisdiction to resurrect a dead (unserved) claim later than 4 months later, so don't complicate it with a draft defence.

If your Judge only sets aside the CCJ and doesn't accept the 4 months dead argument, then they will probably ask you verbally about the bones of your defence and you'll be given 14 days to file a defence anyway. 

Don't forget to file (and serve to the other side) your skelly if you do one AND a costs assessment and proof of paying £275, plus proof of any loss of leave, potential earnings or salary for the hearing.

And do not forget, in your excitement at getting the CCJ set aside on the day, to politely cough at the end, and ask the Judge for those costs, or at the very least to reserve them if he/she is ordering a second hearing about the PCN claim itself.

Judges are addressed 'Sir' or 'Madam'.

Mars28

Thanks very much. I'll start developing my skelly over the next couple of nights and acknowledge the advice on costs, thank you

Got back my DCBL SAR now - they've confirmed no traces were done and all data was provided by the client or me. So now wondering if I should have been more specific with my SAR to CP Plus about search history details? 

DCBL have told me that all correspondence is attached, which is only the 'Letter of Claim' dated 2 and a bit months before the default judgement. I assume the next letter was the claim form which is sent out by CCBC, so I'll ring tomorrow and ask for a copy. Surprised that's not data which DCBL would hold on file for me though!

None the less, my defence remains: no liability as keeper due to non POFA compliance and I'm not the driver, and claimant also failed to serve correctly due to failing to follow CPRs as no traces. 

Mars28

So I've now received  the C's WS....they've put arguments against all my points, most I think are stretching, I hope! They've also made their own request for costs at the end of their WS!

I've been working on my skelly defence for the actual PCN/NTK, which I hope to get to a reasonable draft completed tonight. Do I also submit a WS 2 with the additional points disputing the arguments the C have made in theirs?

I think I still have a strong argument for discretionary set-aside as I can prove, at least I think I can, that I was not the driver.

But they are arguing that it's been too long since the default judgement and my application - they include the time I didn't know about it

They also saying they did a trace which gave my old address - but there is no evidence of the trace in their exhibits or on any of my credit files. According to DCBL, the Letter of Claim was sent a couple of weeks after I moved into a new home.

I'm just trying to comprehend everything they've sent and organise a response at the moment. Is the bottom line: If I can prove I wasn't the driver, then the Judge must set aside, or could set aside?

Mars28

Been writing out a response, a few questions if I may?

- Defendant Failed to make an application for relief of sanctions pursant to CPR 3.9, as set out in Redbourne Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) - I've looked up CPR 3.9, but its not obvious what an application of relief is for? Should I have done one?

- Would a credit reference agency trace show up as a search? C states they did one, but there is no evidence of it on CheckmyFile - I think this is key to my argument that the Claim was served incorrectly

- I've said there is no evidence that on the balance of probability the driver is the keeper, as most families share cars, many cars are leant out etc, and therefore it's a flawed assumption, but one which is a significant reason why the government is writing policy to stop this sort of activity, and indeed PMs and MPs are taking the time to comment on it. Is that fair?

- My evidence of not being the driver is a series of photos showing me quite obviously not in the UK, the NTK which has a poor image of the driver which is not me, but also not great quality, and some e-mails from around the time. If I could get my phone messages from the day it would be clear in there, but proving very hard to scroll that far back! Do you think this would stand up in court? At the very least it puts the balance of probability in my favour, I hope!

I need to take a break - so will tidy up my work tonight/tomorrow and share it when it's better if I may. My watch alarmed saying usual heart rate activity earlier.....good to know my watch was warning me of a possible heart attack for the first time, or perhaps I'm just finding this more stressful than I would care to admit!

Thanks so much for all your help, I appreciate how much time this must take and the effort you make for us strangers!

Coupon-mad

You didn't have to apply for relief from sanctions; they are chatting rubbish! 

But they are arguing that it's been too long since the default judgement and my application - they include the time I didn't know about it.

More rubbish. They should be ashamed of themselves. The 'act promptly' requirement runs only from when you discovered the CCJ.

A soft trace DOESN'T leave a mark on your credit file but if there is no evidence of the trace in their exhibits then...it's hearsay.  Just more disingenuous drivel.

And your evidence that the driver in the photos is not you, will 100% win the case against liability for this charge anyway.  But you WILL have to walk the Judge through this:

Because the Claimant is CP Plus Ltd T/A Group Nexus, they are known to NEVER use the POFA 2012, which you can easily see from their Notice to Keeper.

Lack of 9(2)f keeper liability warning, etc., etc.

In short, CP Plus choose to issue 'non-POFA' NTKs which is an allowable alternative notice by the DVLA and BPA rules, but it means ONLY the driver can be held liable.

Mars28

Thank again C-M, as always very helpful.

I've finished my first draft Skelly which I'll re-visit tonight/tomorrow once i've had a break. I've left costs out for now as they are in my WS, and I'm thinking about reducing the 'disproportionate costs' section to make sure it doesn't detract from the main POFA arguments. I'll be working on my WS No.2 over the weekend also - just want to response to some of the C's points in their WS, and reinforce the arguments that they've been unreasonable to both protect myself at Set-Aside but also increase my chances of being awarded costs.

Any thoughts on my skelly would be greatly appreciated

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SKELETON ARGUMENT

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1.    The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  Liability is denied as I was not the driver and the Claimant has no legal basis from which to pursue the Defendant under the 'keeper liability' as the Claimant has not met the mandatory conditions set out in the Pre-Action Protocol for Debt requirements or the Legislation set out in the Protection of Freedom Act 2012.

The facts know to the Defendant:

2.    It is admitted that the Defendant was the registered keeper of the vehicle in question, but the Defendant was not the driver.

3.    At the time of the alleged event, the Defendant was not in the United Kingdom. Exhibit XXX

4.    The Claimant has issued a Notice to Keeper which does not meet the mandatory conditions set out in the Protection of Freedoms Act 2012, and a Letter of Claim which does not meet the mandatory conditions set out in the Pre-Action Protocol for Debt Claims. Therefore there is no legal basis for the Defendant to be sanctioned as the Keeper of the vehicle at the time of this event, and the case must be struck out.

5.    The facts in this Defence come from the Defendant’s own knowledge and honest belief, having conducted research following the realisation that a default CCJ had been registered against the Defendant on DATE

Breaches of the Pre-Action protocol for Debt Claims

6.    Despite the Claimant’s assertion in the Letter of Claim that it is in accordance with the Pre-Action Protocol for Debt claims, it is not. It in fact breaches the Pre-Action Protocol for 'Debt' Claims on at least 3 accounts:

          a.    No copy of the contract (sign) accompanied any Letter of Claim and the Claimant has failed to meet the requirement to include “the fact that a copy of the written agreement can be requested from the solicitor” in accordance with para 3.1 (a) (iv).

          b.    The Letter of Claim fails to “enclose an up-to-date statement of account for the debt, which should include details of any interest and administrative or other charges added.” in accordance with para 3.1 (b) (i). The original Notice to Keeper was for £60, but the Letter of Claim is for £170 without any detail of the charges which have been added.

          c.    The letter of claim does not “enclose a copy of the Information Sheet and the Reply Form at Annex 1” of the protocol, in accordance with para 3.1 (c).

Breaches of the Protection of Freedoms Act 2012 (Schedule 4 - The recovery of unpaid parking charges)

7.    The Claimant has failed to meet the requirements set out in the Protection of Freedom Act 2012 which is necessary to transfer liability from a driver to a keeper:

          a.    Pursuant to paragraph 7(1)(2)(b), the Notice to Keeper failed to “inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;” There is no explanation as to how long the Driver could park and why the charges stated were now payable.

          b.    Pursuant to paragraph 9(1)(2)(e), the notice to keeper fails to state that “the creditor does not know both the name of the driver and a current address for service for the driver”

          c.    Pursuant to paragraph 9(1)(2)f, the Notice to Keeper fails to “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”

          d.    Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum that may be recoverable from a registered keeper. Therefore, even if the Notice To Keeper had been POFA compliant, the amount claimed is above the maximum allowed. The Claimant is put to strict proof of full compliance and liability transferred.

8.    Therefore, as the Claimant has not met the strict conditions set out in Schedule 4 of the Protection of Freedoms Act 2012, there is no legal basis for the Defendant to be held liable and the Claim must be struck out.

Disproportionate Costs

9.    This Claimant continues to pursue a hugely disproportionate fixed sum (routinely and automatically added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (Authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

10.    This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

11.    Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 

12.    The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

13.    The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.  

14.    This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

15.     Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts.

16.     This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

Summary

17.    The claimant uses an automated bulk litigation business model which operates on the basis that keepers will sometimes be the driver. The claimant is a known serial litigator of Default County Court judgements, to the extent that the significance of the problem has led to previous Prime Ministers, Members of Parliament and the current Government to express concern and intervene. Exhibit XX.

18.    In this case, the claimant states they are pursuing the Defendant as the Driver of the vehicle on the balance of probabilities that the Defendant was the Driver. But the claimant offers no empirical evidence that statistically a Driver is more likely to also be the keeper, rather than a family member, friend, colleague or other named driver on an insurance policy who may be borrowing the vehicle. Therefore, even if the Defendant offered no evidence of not being the driver, it is not credible for the Claimant to make a case that they were just on the ‘balance of probability’.

Conclusion

19.    The Claimant knows they are unable to pursue the Keeper of a Vehicle as they elect to issue POFA 2012 non-compliant Notices, followed by Letters of Claim which do not meet the conditions set out in the Pre-Action Protocol for Debt Claims. The Defendant has provided evidence that they were unable to be Driver of the vehicle at the time of the event, as there is no allowance in law to sanction the Defendant as the Keeper of the vehicle.

20. The claim is entirely without merit and the Claimant is wasting the court's time with speculative PCNs which have no legal basis.

Coupon-mad

Most of that is not right for a skelly.  There is opinion there and facts.  Remove all that.

A skelly is the legal argument.